Opinion
January Term, 1900.
Wallace Nolan and William J. Roche, for the appellant.
John H. Peck, E.W. Douglas and Lewis E. Carr, for the respondents.
The plaintiff, when he entered upon the employment in and about the machine, assumed the ordinary risks and perils of that employment so far as such risks were apparent, and no duty rested upon the defendants to warn him as to, or instruct him how to avoid or guard against, unknown and not to be apprehended dangers; that is, dangers not known to or to be apprehended by the defendants.
It is contended upon the part of the plaintiff that there was, incident to the operation of the machinery by which he was injured, a source of danger which was not obvious or apparent; which increased the hazard of the employment; which was unknown to the plaintiff, but known to the defendants, and as to which they gave him no warning or instruction.
The claim of the plaintiff appellant is that, by the operation of the machinery in question, electrical currents were generated between the two stacks of calenders which drew the paper he had gathered up into the "pinch" between the calenders, carrying his fingers with it, thus causing the injury from which he suffers; that the presence of such currents of electricity, and the danger to be apprehended therefrom, were unknown to him, were not apparent, and that he had never been instructed in relation to them. To support this theory the evidence of various witnesses was given. If the case is to be retried it is perhaps as well not to dwell in detail upon such testimony, but simply refer to its general purport.
The plaintiff testified that, after the happening of the accident, he had a conversation with the defendant Alexander Orr, in which conversation Mr. Orr said "That there was a big tension there that drawed the paper up to the calender rolls." This testimony of the plaintiff was not contradicted by the defendants.
Evidence was also given to the effect that there was some force generated by the operation of the machinery that caused pieces of paper to rise from the floor towards the paper that was being calendered, and also attracted pieces of paper towards the "pinch" of the calender rolls, and that caused the hair of the workmen to rise up towards the paper that was being calendered as they passed between the stacks of rollers. The plaintiff, however, states that he never had seen any manifestation of this power, and knew nothing of it.
During the trial the plaintiff endeavored to show the happening of other prior accidents in the same place to others engaged in the same occupation as was the plaintiff when he was injured, and for that purpose asked the following questions, among others: Q. "While you were employed there did you see any accident to persons being caught and maimed between the calenders on rollers on these machines?" Objected to as improper and incompetent. Objection sustained. Plaintiff excepted. Q. "Do you remember to have seen a boy drawn into the rollers on one of these machines while entangled in some paper and mangled so that he died, before July, 1896?" Objected to as incompetent and improper. Objection sustained. Plaintiff excepted. Q. "Did you witness any accident prior to July, 1896, in connection with the operation of these calenders, and if so what was it?" Objected to as incompetent and improper. Objection sustained. Plaintiff excepted. Q. "I ask you if you were witness to an accident to a boy whereby he was caught, his paper and arms were caught in between the revolving rollers of this machine?" Same objection, ruling and exception. Q. "I ask you if you witnessed such an accident to a boy while he was engaged in the removal of `broke' or paper between the two sets of calenders, whereby the paper and his arms were drawn in between these calenders, and he was mangled and crushed?" Same objection, ruling and exception.
I have set forth the several preceding questions to give point to the last, and so that it may be understood what kind of an accident was there referred to.
I think that the question was proper and the answer should have been received.
Taken in connection with the statement made by the defendant Alexander Orr to the plaintiff heretofore referred to, "that there was a big tension there that drawed the paper up to the calender rolls," it tended to show knowledge upon the part of the defendants of a reasonably to be apprehended or anticipated source of danger, as to which the plaintiff should have been warned and instructed.
This is not the case of another accident happening in a known place of danger, or from an obvious and apparent source of danger, but of an accident which discloses the existence of a dangerous place, one which discloses a source of danger.
"Proof of the happening of a prior accident in the same place has frequently been held to be competent upon the ground that it tends to show that, tested by actual use, the place of the accident has been demonstrated to be unsafe and dangerous." ( Brady v. M.R. Co., 127 N.Y. 46.)
It has been repeatedly held that the fact that an appliance, instrument, machine or way has been used for a long period of time without the happening of any accident therefrom or thereon, refutes the charge of negligence, because "that which never happened before, and which in its character is such as not to naturally occur to prudent men to guard against its happening at all, cannot, when in the course of years it does happen, furnish good ground for a charge of negligence in not foreseeing its possible happening and guarding against that remote contingency." ( Hubbell v. City of Yonkers, 104 N.Y. 434; Loftus v. Union Ferry Co., 84 id. 455; Burke v. Witherbee, 98 id. 562; Cleveland v. New Jersey Steamboat Co., 68 id. 306; Crocheron v. N.S.S.I. Ferry Co., 56 id. 656; Dougan v. Champlain Transportation Co., 56 id. 1; Lafflin v. Buffalo Southwestern R.R. Co., 106 id. 136.)
If the fact that a piece of machinery, appliance or way has been used for a series of years without any accident occurring therefrom is evidence of a lack of negligence, and evidence that danger was not reasonably to be apprehended from the use of such instrumentalities, then it seems to me that the converse of that proposition must be true, and that evidence of the happening of accidents, from the use of such instrumentalities, under similar conditions or circumstances to the accident under investigation, is competent upon the question of the defendants' negligence, and competent to show that the defendants could have reasonably apprehended the happening of such accidents, and that, therefore, it was their duty to guard against them or to instruct their employees in regard thereto.
I think, therefore, that evidence of prior accidents at the same place, happening under circumstances and conditions similar to the one in question here, was admissible.
This being an appeal from a judgment upon the direction of a verdict, the appellant is entitled to the most favorable inferences that can be drawn from the evidence given, and also from the evidence erroneously excluded.
We must assume, therefore, that other accidents had happened prior to the one in question, by which persons employed in gathering up "broke" and paper in the manner in which the plaintiff was employed, and in the place where the plaintiff was employed, had their hands and arms drawn into the "pinch" of this machinery as were the hands and arms of the plaintiff in this case.
We have, then, this condition of affairs, a boy of fifteen years or thereabouts, employed to remove broken pieces of paper from between revolving pieces of machinery, which machinery generated electricity, which has a tendency to draw the paper so gathered to the machinery; and that, prior to the happening of the accident in question, other persons engaged in a like occupation to the plaintiff in the same place, while having the paper in their arms or hands, had the paper and their hands or arms drawn into the machinery and so injured or crushed; that the plaintiff could not see and was not aware of this source of danger, and was not warned thereof or instructed in relation thereto, and while so engaged in his employment, after he had gathered up the paper in his arms and was backing out of the space between the calenders, he was, to use his own language, "quickly jerked around, and the next thing I saw was the paper going through the calenders, and my arms with it."
It seems to me it was for the jury to say whether this accident was caused or induced by the current generated by the operation of the machinery; and I do not think that, under all the circumstances, taking into consideration the age and occupation of the boy, and the nature of the force in question, that the court can say as a matter of law that it was an obvious and apparent source of danger, the risk of which the plaintiff assumed.
For these reasons the judgment should be reversed and a new trial granted, costs to abide the event.
All concurred, except KELLOGG, J., dissenting.
Judgment reversed and a new trial granted, costs to abide the event.